Ashok B. Hinchigeri, J.

1. The petitioner/plaintiff has called into question the order dated 13-8-2014 (Annexure-A) passed by the Court of the Additional Senior Civil Judge and Judicial Magistrate First Class, Chikkaballapur in O.S. No. 209 of 2006. The petitioner has filed the suit against the respondents seeking the relief of specific performance of the sale agreement dated 1-10-2003 (Annexure-B). On the Trial Court holding the petitioner/plaintiff liable to pay the stamp duty and penalty, this petition is filed.

2. Sri G. Balakrishna Shastry, the learned Counsel for the petitioner submits that Article 5(e)(i) of the Karnataka Stamp Act, 1957 ('the said Act' for short) is not attracted to the sale agreement in question. He submits that under the sale agreement, neither the possession of the property is delivered nor is agreed to be delivered without executing the conveyance. In support of Ms. submissions, he relies on this Court's decision in the case of Mr. N. Srinivasa v. Murulesh and Others, ILR 2014 Kar. 4350 Paragraphs 4 and 5 of the said decision read out by him are extracted herein below:

"4. Therefore, to attract stamp duty under Article 5(e)(i), the following two conditions have to be fulfilled:

(a) In part performance of the contract, possession of the property is to be delivered;

(b) In part performance of the contract, possession is agreed to be delivered without executing the conveyance.

5. To attract the said provision there should be a recital in the agreement of sale to the effect that under the agreement the possession is delivered. Whether possession is actually delivered under the agreement or not is immaterial. Similarly, if possession is delivered earlier to the agreement or subsequent to the agreement is also immaterial. The recital the that possession would be delivered after five months would not amount to delivering possession under the agreement. Similarly, the recital the that possession is agreed to be delivered is not sufficient to attract the liability to pay stamp duty. There should be express recital that "without executing the conveyance", the possession is agreed to be delivered. Admittedly, there is no recital in the agreement of sale to the effect that possession is delivered in part performance of the agreement. Nor is there any recital that such possession is agreed to be delivered without executing the conveyance. On the other hand, the recital in the agreement is to the effect that 'the possession is being delivered after five months' and that 'on payment of the consideration, the seller shall execute the registered sale deed'. Therefore, Article 5(e)(i) of the Schedule to the Act is not attracted. There is no merit in this writ petition. Accordingly, it is dismissed."

3. He submits that simply the sale agreement between a purchaser and vendor cannot be treated as conveyance. According to him, Article 5(e)(i) of the Schedule to the said Act is for meeting different contingencies altogether. The agreement attracts the imposition of stamp value under Article 5(e)(i), if it is the agreement between a property developer and a property owner. It is because the owner will not be selling the property to the developer but a developer will be selling the developed property in favour of the third parties on behalf of the owner.

4. Sri Shastry submits the that Courts cannot go behind and beyond the recital in the document. The plain reading of the sale agreement shows that it is silent on the possession aspect. He submits the that issue as to whether there is a surrender of tenancy or implied surrender of tenancy is to be adjudicated on holding the trial. The Trial Court's holding the thatre is implied surrender of tenancy amounts to prejudging the issue. He submits that in such cases, the enquiry has to be held on the liability of a party to pay the stamp value as required by Section 46-A of the said Act.

5. Sri Nagaraj S. Jain, the learned Counsel for the respondents submits the that sale agreeme